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Fighting the Last Free Speech War

The Right, not the Left, poses the biggest threat to free speech on college campuses today, says a University of Missouri law professor.

Ben Trachtenberg

If you’re inclined to feel anxious about the culture of American higher education, you have a couple of choices: You can be afraid that your fellow citizens outside the campus are trying to shut down campus free speech, or you can be afraid that the “woke” citizens on campus are trying to roll over you.

Both are happening. We can’t focus on just one of the threats to the exclusion of the other. But our national debate has centered overwhelmingly on the less dangerous threat posed by students, faculty, and administrators who cannot tolerate offensive ideas. The more dangerous threat—posed by politicians, trustees, and donors—deserves our attention.

In the last few months, Republican legislators in various states have taken up a spate of education-related bills that range from futile to chilling. Examples include cutting department budgets over political disagreements, inquiring into the politics of faculty members, scouring syllabi for how hot-button political topics are being taught, and abolishing tenure so as to expose professors to firing. There’s not much explanation for these proposals except that the faculty’s alleged political opinions are causing cardiac arrest in the public officials who pay their salaries.

The Field of Battle

There isn’t a time in the history of American higher education when universities haven’t been a field of battle in the country’s religious and culture wars. Many U.S. colleges and universities had religious origins, and it wouldn’t have occurred to their founders that free academic speech in the modern sense was among their founding principles.

In 1965 the American Association of University Professors (AAUP) asked historian Walter Metzger to write an account of the organization’s origins. Metzger noted that when the AAUP was founded in 1915, one of its primary purposes was what he called “self-defense,” his term for the protection of academic freedom. One of the AAUP’s chief goals, tenure for faculty, was a means of protecting this freedom against incursion by government authorities and donors.

By 1965 Metzger said, the AAUP’s efforts had created “if not a benign existence, at least a plateau of security.” Still, this “plateau of security” required continued collective action to protect it from the “possessors of legal and material power.” Everyone knew who the possessors were: university administrators and trustees.

The AAUP and free-speech advocates won a string of victories over the years. While most U.S. workplaces are dictatorships in terms of free speech, because most American workers are “at will” employees who can be fired for having the wrong politics, American campuses have become relative free-speech havens. Students, faculty, and guest speakers express ideas that are wise and silly, reverent and iconoclastic, sensible and dangerous. At public universities, First Amendment law prohibits punishing students, faculty, and staff for ordinary political speech. Private universities, though not bound by this law, largely comply with the same standards. Even in prominent religious institutions—think Georgetown University or Boston College—the norm is religious heterodoxy. U.S. students and faculty may generally say what they want, subject only to the general restrictions—covering libel, physical threats, and the like—that the law imposes both on and off campus.

Let’s draw the illuminating contrast: Germany criminalizes political speech such as the endorsement of Nazism. European universities forbid types of speech like Holocaust denial. As I learned in Northern Ireland, universities there prohibit the display of flags that are likely to arouse political disagreements. France bans religious garb like Muslim headscarves in elementary and secondary schools and is debating an extension of the ban to universities. A Muslim student who appears in a public forum in a hijab can expect to be denounced by government ministers. Not long ago, the Swiss voted narrowly to ban Muslim face coverings.

Partly because of America’s relative decentralization of power, as well as our stronger anti-censorship norms, U.S. universities don’t come close to this kind of dirigisme. Apart from sectarian institutions, our faculty members and students wear kippot, hijabs, crucifixes, and more exotic markers of religious identity. They distribute religious tracts and voice religious chants. People don’t much notice.

The Backstory

Yet American universities are no free-speech Eden. In the 1940s, U.S. universities prohibited students from inviting Communists to speak at campus events. Left-wing student groups faced bans and other official sanctions. In 1949 Harvard President James Conant declared Communists “out of bounds as members of the teaching profession.” In 1950 the University of California fired dozens of professors who refused to sign a regents-mandated loyalty oath disclaiming Communist affiliations. In the 1950s during the prominence of Senator Joseph McCarthy, professors were subpoenaed by Congress to testify in hearings investigating Communist infiltration of the academy.

In the mid-1960s, when McCarthy was disgraced and powerless, those with “legal and material power,” in Metzger’s terms, would nevertheless vindicate his concerns as they responded to civil rights organizers and anti-Vietnam student protests.

During the “Freedom Summer” of 1964, a voter registration drive in Mississippi, local organizers encouraged Northern college students to assist them, partly because organizers knew that when the Ku Klux Klan—inevitably—attacked, they would injure the white students, thereby provoking national news and inspiring sympathy.

Lawrence A. Davis, Sr., president of the historically black Arkansas Agricultural, Mechanical, and Normal College from 1943 to 1973, initially supported his students in the civil rights movement. In 1958 he hosted Martin Luther King, Jr., as a commencement speaker. He promised students he would resign rather than discipline them for participating in Woolworth lunch counter sit-ins. But in 1963 he expelled fifteen of these student protesters.

Why? Because, after King’s visit in 1958, the Arkansas legislature cut his school’s appropriation and threatened to defund the college entirely. Davis broke his word to his students in order to save their institution.

In May 1970 Governor James Rhodes of Ohio called antiwar protesters at Kent State University in Ohio the “worst type of people that we harbor” in America and promised to use “every force of law” and “every weapon possible” against them. The next day at the university, National Guard troops fatally shot four protestors and wounded several others. Ten days later, Mississippi police fatally shot two student protestors at Jackson State University.

In other words, the troops’ response to the campus speech expressed by student protesters was to exercise deadly force.

The Reaction Arrives, on Schedule

After campuses were roiled by anti-Vietnam protests in the 1970s, they started to see complaints about the “political correctness” that was said to be smothering campus debate.

The complaints had several elements; but the first, probably irreducible piece of the problem was that views associated with the political Right are usually not popular on American campuses. Beginning in the 1960s college students rebelled against the sexual morality preached, albeit not always practiced, by their elders. Conservative students who argued for abstinence in campus newspapers became objects of scorn. In the 1970s students who supported the Vietnam War suffered similar opprobrium.

We shouldn’t minimize the unpleasantness for students whose ideological shells haven’t yet hardened when they find themselves politically isolated on campus or in academic departments. Liberals have their idealism mocked as unrealistic, especially in programs more commonly associated with practical career preparation than social justice. Conservatives find themselves in programs that they view as “political indoctrination masquerading as education,” meeting fellow students who diagnose their conservative statements as “sexist,” “racist,” or otherwise disreputable.

Accusations of racism can transcend the classroom, as political scientist Charles Murray discovered in 2017 when he and his faculty host were physically attacked while trying to deliver a lecture at Middlebury College. Moreover, misguided invocations of social justice come from not just students or individual teachers but university administrators. Thus, Northwestern University allowed Title IX of the Education Amendments Act of 1972 to be used against one of its faculty members, Laura Kipnis, after she questioned the use of Title IX against another faculty member—and, as a result, found herself hauled up on yet another Title IX complaint, in a kind of endless loop.

Organizations like FIRE—the Foundation for Individual Rights in Education—have catalogued campus speech codes to call attention to some that can chill free expression through the use of “hate speech” and “bias” standards, sexual harassment definitions, residence hall posting rules, and information technology terms of use. Fordham University, which punished a student in 2020 for online political statements that criticized the Chinese government and supported American police, showed how slippery definitions and ham-fisted enforcement can cause misunderstandings at best and injustice at worst.

“It’s Not a First Amendment Thing, Man”

Here, however, we have to confront unpleasant facts: As legal scholar Heidi Kitrosser put it in a 2017 article in the Minnesota Law Review, there has been “tremendous imprecision” in the campus speech debate. “Many commentators,” she explained, “decry political correctness as a threat to free speech but leave unclear whether, by political correctness, they mean campus speech codes, informal social pressures, or something else.”

In other words, the incidents often cited as evidence of the “free-speech crisis” usually don’t involve censorship of speech. In fact, when it comes to actual censorship, today there is little appetite or support for it on either the left or the right. Thus, a recent National Review piece allowed that campus activists on the left no longer “disinvite” speakers with whom they disagree—but accomplish the same thing by not inviting them in the first place.

In The Big Lebowski, the Dude cuts to the chase: It’s “not a First Amendment thing, man.” If you express your ideas and people respond by laughing at you or even calling you a racist, they may be rude or unkind—but no one has trampled on your rights.

Let me state the obvious: Students should not be permitted to shout down speakers whom they oppose. Whether such incidents are rare or common, campus officials must take them seriously. By doing so, they will educate students about the importance of tolerating disfavored ideas. They may build credibility among those suspicious of institutional commitments to free speech. They will promote debate and the exchange of ideas.

In the same way, rules like Fordham’s, aiming at behavior that violates no statable norm but is nonetheless upsetting, can’t be defended or justified.

But we have a hard time recognizing the distinction between violative and distasteful. During the 2008 presidential campaign, Republican candidate Sarah Palin complained that if the press was allowed to describe her tactics as “negative campaigning,” then, “I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.” Palin was echoing a Nabokov character named Dr. Shoe, who proclaims, “Thank God we live in a great country, where everybody can speak his mind without being insulted for expressing a private opinion.”

We don’t have to be Dr. Shoe. We can tolerate insults without demanding regulation. We can recognize vigorous disagreements as a product of American ideals, not a departure from them.

During my terms as chair of the Faculty Council at the University of Missouri, from 2015 through 2017, I got an intense education about campus speech law and policy. Student protests at Missouri received national media attention. In their aftermath, the university faced hard questions about its regulation of speech. If nothing else, we had unclear rules and needed to give a better explanation of what was and was not allowed.

Together with the interim chancellor, I appointed a committee to draft new rules. It included First Amendment scholars, students, and the chief of the campus police. Revised regulations resulted—along with explanations and a strong institutional statement of the importance of free speech. For example: “If you wish to protest a public lecture on campus, you may do so, but you may not prevent the speaker from being seen and heard.” Trust me: That’s much clearer than what most universities have been putting out.

The Missouri rules have worked fairly well. Students sometimes find themselves in trouble, but that should be no surprise. Students violate rules of all kinds from time to time.

Poking the Bear

The pull and haul of the free-speech debate on campus has been with us for more than four hundred years and will continue to be so. What makes the back-and-forth more serious is that, these days, the conflict often ends up poking the bear.

The bear consists of third parties outside campus, from free-speech organizations to state legislatures. In the latest rounds of the conflict, these parties have become increasingly active in a way that makes the debate more toxic.

When Democrats complain about higher education, they focus on practical issues like costs and graduates’ job prospects. When they want to defend free speech, they face a dilemma. If they simply ignore real threats to free speech, they are hypocrites betraying their principles. Yet if they speak out against the threats, they fuel talk about a campus speech “crisis” and abet efforts by activists who are in fact fundamentally hostile to academic freedom and campus debate.

When liberals focus on the ways in which “woke” campus tantrums undermine left-leaning projects, they end by bolstering conservative attacks. The liberals fret about loudmouthed students instead of people with power to cut budgets and fire political enemies. These powerful actors pose the substantial threats to free speech on campus, not sophomores with signs in the quad and petitions on change.org.

Republicans do not face this dilemma and are more likely to go for the cultural jugular. When conservative opinion leaders say that U.S. universities stifle conservative speech, they stoke hostility among Republicans toward American higher education. They proclaim a campus speech crisis, then use the idea to raise money for political campaigns and advocacy groups and to attack faculty and administrators. The attacks, in turn, fuel political intervention in university governance.

The result is to give hostile politicians and wealthy donors an opening to use their power to chill campus speech. And, in fact, Republican politicians have not just enacted laws purportedly protecting campus speech from unreasonable restriction, but have actually moved to suppress speech they do not favor. The list of such initiatives is long and growing.

In Wisconsin, Governor Scott Walker signed a bill reducing tenure protections at state universities. The North Carolina legislature cut the budget of the state university’s law school in response to activities by the law school’s legal clinics and other work related to civil rights and poverty. Responding to programming deemed offensive, Tennessee lawmakers removed from the appropriation for the University of Tennessee at Knoxville “all funds in the budget of the office of diversity and inclusion;” the head of the office had to find a job elsewhere, quickly. Nebraska legislators, questioning whether conservative students were treated fairly at the state’s flagship campus, picked a fight with the chancellor. A Missouri bill, introduced after Mizzou football players participated in student protests, would have required revocation of the scholarship of any college athlete who “participates in any strike or concerted refusal to play a scheduled game.”

Iowa Republicans are considering bills to abolish tenure and require regents to report the political affiliations of public university employees. An Arkansas bill would bar classes, events, and activities that promote “division between, resentment of, or social justice for” any race, gender, political affiliation, or social class. (There are exceptions for teaching events like the Holocaust.) The bill’s sponsor said it would help “white students,” who otherwise “may not feel they have the right to push back on accusations that they have privilege.”

In Texas, donors recently threatened to pull funding unless the university prevented football players from protesting the playing of “Eyes of Texas” after games. The song, which is associated with Robert E. Lee, has inspired intense debate on campus, and donors want administrators to limit how students participate in that debate.

In January, Georgia’s public university administrators, responding to a legislator’s request, sent faculty a questionnaire asking, among other things, “Are any classes … teaching students what constitutes ‘privilege’ and ‘oppression?’” The Georgia survey echoes a Missouri state senator who asked for all documents “related to a research project” on the “impact of Missouri’s new law requiring women to wait 72 hours before obtaining an abortion.” In February, every Tennessee Republican state senator signed a letter calling on public universities to punish student athletes who protest during sporting events. In March Idaho lawmakers cut $409,000 from Boise State’s budget, after initially threatening an $18 million cut, in retaliation for the teaching of “social justice” programs.

Students and faculty members know the purpose of these bills, letters, and queries. It is not to protect free speech on campus. If a real campus free-speech crisis comes, seek its origins in the state houses, not the dormitories. Whatever power student activists may have, it is legislators who have the authority to close institutions and trustees who can fire presidents. These are the powers that focus administrators’ minds.

Ben Trachtenberg, a contributing editor of American Purpose, is the Isidor Loeb Professor of Law at the University of Missouri. His recent scholarship addresses how rising conservative discontent with higher education is changing the legal environment in which colleges and universities operate.

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